Constantine v Blacktown City Council [2016] NSWLEC 56

Land and Environment Court New South Wales

Medium Neutral Citation: Constantine v Blacktown City Council [2016] NSWLEC 56 Hearing dates: 11 April 2016 Decision date: 11 April 2016 Jurisdiction: Class 3 Before: Moore J Decision: Leave to amend defence refused Catchwords: AMENDMENT - acquiring authority seeks to amend basis of defence – leave refused Legislation Cited: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, 239 CLR 175 Maloney v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 121; 184 LGERA 386 Category: Procedural and other rulings Parties: Mario Constantine (Applicant) Blacktown City Council (Respondent) Representation: Counsel: Mr I Hemmings SC/Mr S Nash, barrister (Applicant) Mr A Galasso SC (Respondent)

Solicitors: Project Lawyers (Applicant) Ritchie & Castellan (Respondent) File Number(s): 30549 of 2015 Publication restriction: No

EX TEMPORE JUDGMENT 1. HIS HONOUR: The acquiring authority seeks leave, at the commencement of the proceedings, to amend the basis of its defence to plead, in effect, that I should have regard to the zoning that had pre-existed prior to the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP) coming into effect under the relevant Blacktown Local Environmental Plan, that zoning being as Rural 1(a). It is resisted by the Applicant in the proceedings on a variety of bases. 2. I have concluded that it is necessary only to deal with one narrow basis upon which leave to amend is resisted and that is the question that arises from proper consideration of the issues canvassed by the High Court in Aon v Australian National University [2009] HCA 27, 239 CLR 175. 3. It seems to me that the possibility of reliance on the rural zoning under the Blacktown LEP was, although not a case involving the Council, a matter that was canvassed in the first instance before Biscoe J in Maloney v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 121; 184 LGERA 386 (in a series of hearings that commenced in February 2011, with a decision given on 13 July 2011) - so there is no suggestion that this matter is one of entire novelty in such matters. 4. I appreciate that the Maloney land is not within the land identified in Appendix 12 of the SEPP, being the land area precinct within which the present land falls, but that land has been identified in the plan for the Marsden Park Precinct since October 2013 and the Maloney land abuts that precinct. More importantly in my assessment, it abuts the land that is known as the Air Services Australia land, land which the acquisition land in these proceedings also abuts, and issues which are relevant to the Maloney land are, at least in part, potentially relevant to portion of the lands that fall within these proceedings. 5. More particularly, the town planning experts who were provided with instructions by their relevant parties, provided individual reports that were filed at least toward October of 2015 - with the Respondent Council's town planner's report by Mr Kennan being filed on 9 October 2015 and the joint report of Mr Kennan for the council and Mr Haskew being filed on 23 October 2015. 6. The application that is now made, in my view, comes far too late to be considered and, consistent with the broad approach, including the various authorities relied upon by Biscoe J in Maloney, I consider it is too late and leave to replead is refused.